Last week, the Author's Guild filed suit against Google, arguing that Google's new "Google Print" project infringes copyright. The blogosphere has been abuzz on the topic, with (among others) Jack Balkin, Tim O'Reilly, and Larry Lessig weighing in strongly on Google's side. But I'm not so sure, for reasons I want to develop a bit here.
For those of you who haven't followed this one, the question is whether Google can build a searchable index that allows queries against a database of print books that Google itself scans in. Google has already begun the scanning, and Google's basic position is that it can scan any book it wants, even without the copyright holder's permission. In legal terms, Google's contention is that it is fair use to scan a book without permission if the purpose of the scan is to then create an a search engine that will return only snippets of the work.
I have several concerns with such an argument.
First, even if Google's specific use does not harm copyright holders -- and I doubt that, and will say more on that point below -- I worry about security issues. Think about it. Google is about to build a giant database that will have electronic copies of millions of books. Isn't that a huge target for some hacker who will want to then put those books online? If the books get out, that would obviously hurt sales for the relevant authors. Thus, at a mimimum, shouldn't any fair use defense be contingent on some sort of obligation to maintain reasonable security?
Second, even if the books are secure, shouldn't authors have a right to some of the value created here? Yes, yes, I know -- copyrighted works create lots of value, and only some of it goes to the relevant copyright holders. But Google's fans all argue that online database access is going to be the main way books are used in the future. If that's right, and I suspect it is, shouldn't we be developing a legal system that allows authors to share in that revenue stream? (Are there types of books for which this argument is better than others? For instance, I take it that very few copies of Bartlett's Quotations would be sold if "snippets" were available for search on Google. What other books fall into that category, namely books that would lose their entire value were they Google-ized?)
Third, and cutting both ways, transaction costs strike me as the central theme for debate here. Why can't Google ask for permission with respect to books for which the copyight holder is reasonably identifiable? Yahoo asks for permission. So do radio stations. It strikes me that the costs of asking are usually pretty modest as compared to the costs of scanning a full book. (With respect to works where the copyright holder is not reasonably identifiable, and hence those costs are not modest at all, should we have a special fair use defense, just as a way of helping new-technology projects like this take off?)
Lastly, remember that whatever legal rule we create here is a legal rule, not a Google-specific contract. Thus, we have to make sure that any fair use rights we articulate here will work in a world that has lots of players (Google, Yahoo, new startups, and so on) plus also dishonest players that will abuse the rules here in much the same way that the Grokster and Napster folks abused the rules related to small-scale sharing of music.
Can we write a rule that solves these problems, or create a set of legal rights that make a comparable project (like Yahoo's) possible? I hope so. The idea of an online database for print books is very exciting. The above are some of the difficulties that loom, however, and I would welcome some ideas in how to address them.